Company of Papal Zouaves

Saturday, July 3, 2010

IN THE FINAL CHAPTER OF HIS BOOK, The Disfigured Face: Traditional Natural Law and Its Encounter with Modernity, Professor Cortest undertakes a whirlwind tour of the advocates of the natural law in the 20th century. In seriatim order, he undertakes brief reviews of the natural law thought of Belgian prelate Désiré-Joseph Cardinal Mercier (1851-1926), the Catholic layman and neo-Thomist philosopher Jacques Maritain (1882-1973), Pope John XXIII 1881-1963), Pope John Paul II (1920-2005), and the Australian-born and Oxford Don, John Finnis (1940) and the American moral theologian Germain Grisez.

In general, this part of Professor Cortest's book disappoints on various fronts. His treatment of Cardinal Mercier is odd and superficial, mainly because of the selection of texts chosen to illustrate this Cardinal's thought. Cortest relies mainly on excerpts from Mercier's letters and speeches. But surely more should have been dedicated to the scholarly work of Mercier, who, Cortest acknowledges, "was, without question, one of the leading Catholic intellectuals of his day." Cortest, 78. Where, for example, is a discussion of Cardinal Mercier's treatment of the natural law in his A Manual of Modern Scholastic Philosophy? One would have expected that this be included in any treatment of Cardinal Mercier's notion of the natural law. Indeed, there is no citation to any principal work of Cardinal Mercier in the entire text. Moreover, in discussing Mercier's work, Cortest seems to have lost the thread of his work, namely the significance of ontology in the matter of natural law.

Another criticism that may be levied against Cortests' last chapter is his failure to include the effect that World War II had on the resurgence of a natural law theory, and a widespread recognition of the failure and intrinsic weakness of positivistic theories of law. Specifically, the Nuremberg Trials held between 1945 and 1946 and their justification on principles of natural law should have been accorded some treatment in a review of natural law in the 20th century. Additionally, his focus on exclusively Catholic scholars is unfortunate. He could, for example, have cited the works of Leo Strauss or Eric Voeglin as a non-confessional example of the natural law.

Cortest's treatment of Jacques Maritain is tolerable, if whirlwindish. The works of the neo-Thomist Maritain certainly should be included in any survey of the natural law in the 20th century. Cortest stresses the democratic leanings of Maritain, and his admiration for the U. S. Constitution and American's constitutional regime. But Cortest relies almost entirely upon Maritain's Man and the State. Although the corpus of Maritain's work is truly daunting, one would have thought that some mention would be made of Maritain's Lectures on Natural Law, and his Natural Law: Reflections on Theory and Practice, or even his The Rights of Man and Natural Law (Les droits de l'homme et la loi naturelle). Nevertheless, at least with respect to Maritain, Cortest summarizes Maritain's thought on the natural law and returns to his theme:

For Maritain, natural law is ontological; therefore, it reflects the natural order of being. As such, natural law expresses an obligation that human beings have by nature. If there is no ontological foundation for human rights, these rights must be based exclusively on reason.

Cortest, 85. It seems clear from this excerpt that Maritain rejected the notion of a natural law being one predicated upon reason alone without regard to some ontological concept of nature. Maritain struggled, whether successfully or not is another story, to reconcile the traditional, classical, ontologically-based notion of natural law with the Enlightenment view of natural rights which, stemming principally from the Cartesian dualism, largely rejected any metaphysical or ontological basis of natural law, and instead predicated its natural rights theories on reason alone, denuded of anything that could be called "nature." But it is clear that fundamentally Maritain's concept of natural law is authentically Thomistic, and goes back to "being" above all things:

I have said that natural law is unwritten law; it is unwritten law in the deepest sense of that expression, because our knowledge of it is no work of free conceptualization, but results from a conceptualization bound to the essential inclination of being, of living nature, and of reason which are at work in man, and because it develops in proportion to the degree of moral experience and self reflection, and of social experience also, of which man is capable in the various ages of his history. Thus it is that in ancient and medieval times attention was paid, in natural law, to the obligations of man more than to his rights.

Cortest, 85 (quoting Maritain's Man and the State). It is manifest that Maritain's view of natural law is based upon something more than mere reason, though reason is one of its components. It also regards--indeed is "bound"--to the "essential inclination of being, of living nature." Here is a clear reference to the ontological basis of Maritain's view of natural law, one obtained from the Aristotelian/Thomistic well out of which this great Catholic philosopher drank in great abundance.

The modern age is awash in "rights talk," and to some extent the Church, and not always felicitously and without confusion, has accommodated herself (but not abandoned herself) to the world by adopting the language of rights and religious liberty. This aggiornamento was done in a Pauline spirit of being all things to all men.

For whereas I was free as to all, I made myself the servant of all, that I might gain the more. And I became to the Jews, a Jew, that I might gain the Jews: To them that are under the law, as if I were under the law, (whereas myself was not under the law,) that I might gain them that were under the law. To them that were without the law, as if I were without the law, (whereas I was not without the law of God, but was in the law of Christ,) that I might gain them that were without the law. To the weak I became weak, that I might gain the weak. I became all things to all men, that I might save all. And I do all things for the gospel's sake: that I may be made partaker thereof.

(1 Cor. 9:19-23). For the Church, the language of "rights" and "religious freedom" is not entirely natural. It is in some sense fraught with problems (since the modern notion of "rights" stems from an anthropology, a moral philosophy, entirely at odds with the traditional anthropology or moral philosophy of the Church, and is so hopelessly undefined). Some of these "rights" have sound ontological basis; others (e.g., the right homosexual marriage or access to contraception) do not. Modern "rights" also tend to be overly expansive, being civil or conventional rather than natural. Moreover, there are differences in rights depending upon whether they are born of tolerance by the common good, or whether they are affirmative in nature and demand strict reciprocal duties from others. But to interact with the world, to bring the world to Christ, our mother and teacher, our Mater et Magistra, has taken the risk of engaging in "rights talk." So it is that Pope John XXIII in his encyclical Pacem in Terris (April 11, 1963) describes a whole range of natural rights, including religious, economic, personal, and political, unsettling folks such as Garry Wills who coined the expression (a macaronic expression of Latin and Spanish), "Mater, si, Magistra no" in a conversation with William F. Buckley. (The phrase is typically attributed to William F. Buckley, but it apparently comes from Garry Wills, if Wikipedia is to be believed. It certainly seems consonant with Wills's erratic Catholicism.) This "rights talk" appears to be something that will continue in the Church's dialogue with the world for the foreseeable future, so in foro externo we must be resigned to it, understanding the nuances in rights language, and recalling always the underlying doctrine. If the Church hopes to save souls, so must the Church speak to the world which otherwise would turn a deaf ear. Cortest expresses his discomfort at this expansion of "rights talk" in John XXIII's encyclical ("If indeed Pope John's extensive treatment of human rights does not represent a departure from previous Catholic thought . . . " [Cortest, 86]), but acknowledges that there is always the reserve or the tie to traditional principles of natural law ("Pope John, however, is careful not to break completely with older tradition." [Cortest, 87]).

Another curious omission by Cortest is the natural law thinking of the American Jesuit John Courtney Murray, and the culmination of his thought in the Second Vatican Council's Declaration on Religious Freedom. Another striking omission in Cortest's tour of the 20th century is Pope Paul VI's encyclical Humanae Vitae which relies so heavily on principles of natural law, to the chagrin of many a Catholic theologian at the time. Similarly, though he acknowledges that "the overall influence of Thomism has declined," since the Second Vatican Council, Cortest does not address the wholesale apostasy from traditional moral philosophy and theology, even the natural law, by the likes of the Germans Josef Fuchs and Bernard Häring, the Canadian Bernard Lonergan, and the American Charles Curran, among many others which could be cited.

But the other side of the coin of aggiornamento is ressourcement. And a return to the sources is what the pontificate of John Paul II was all about. "The Roman pontiff, John Paul II, may well have been the strongest defender of natural law since the time of Leo XIII." Cortest, 88. Cortest rightly emphasizes John Paul II's rigorous treatment of the natural law in his encyclicals Veritatis splendor, Centesimus annus, and Fides et ratio. "All these texts address moral questions in terms of traditional natural law." Cortest, 94. Indeed, Cortest suggests in a footnote against the view of Ernest L. Fortin, that "John Paul II is perhaps the strongest defender of Thomistic principles among the Roman pontiffs of the twentieth century." Cortest, 120 n. 30.

Finally, Cortest addresses the work of John Finnis, and, to a lesser extent, the preliminary groundwork underlying Finnis's work by the moral theologian Germain Grisez. Rather oddly, in my mind, Cortest has chosen Finnis's Aquinas: Moral, Political, and Legal Theory as the basis for his review of his work. Completely unmentioned by Cortest is John Finnis's Natural Law and Natural Rights. It is this latter text that has had significant impact upon Academia. If one is going to critique the Finnisian theory of natural law and rely on one text, the natural text that should have been chosen would be the latter. Nevertheless, at least in my mind, Cortest is quite right when he ultimately concludes that "[t]he doctrine that Finnis and Grisez find in Aquinas's thought may, indeed, be called 'natural law,' but it certainly is not the traditional version that we have described in this study. That form cannot be understood apart from considerations of nature and being." Cortest, 100-01. As Cortest notes, referring to Lloyd Weinreb's Natural Law and Justice, the natural law theory of Finnis and Grisez and those of their followers, is not an ontologically-based natural law. It is a non-ontological natural law theory. "Natural law's contemporary proponents . . . have accepted the burden of providing an unmetaphysical grounding for their position." Cortest, 121 n. 52 (quoting Weinreb). For one who advocates a traditional, classical view of natural law, while Finnis and Grisez may be allies, they are not within the boundaries of a classical, traditional, ontologically-based theory of natural law. At the heart of their theory is a separation of "good" from "being," practical reason from speculative reason, morality from ontology or metaphysics, acting from being. For Grisez as for Finnis and those who base their thought on them, nature has no moral things to teach us, it is largely pre-moral. For them, there is no "ought" to be found in the "is" of nature. They argue as if Hume was right.

The separation of ontology from morality in Finnisian natural law theory, and the effort to build a natural law on this separation, comes from the thought of German Grisez. As Grisez stated in his seminal essay, "The First Principle of Practical Reason: A Commentary on the Summa Theologiae, 1-2 Question 94, Article 2," Natural Law Forum 10 (1965), 168-20:

Some interpreters mistakenly ask whether the word "good" in the first principle has a transcendental or an ethical sense. The issue is a false one, for there is no question of extending the meaning of "good" to the amplitude of the transcendentals convertible with "being."

St. Thomas doesn't teach that good is convertible with being? Is Grisez serious? Has Grisez abandoned an ontological basis for ethics? It seems manifestly so. And just to make it clear that we are not misconstruing Grisez's intendment, we ought to quote the clear criticism that Grisez makes of Suarez for holding to the classical position:

Suarez thinks that what is morally good or bad depends simply upon the agreement or disagreement of action with nature, and he holds that the obligation to do the one and to avoid the other arises from the imposition of the will of God. Hence "evil" in the first principle of natural law denotes only the actions which definitely disagree with nature, the doing of which is forbidden, and the "good" denotes only the actions whose omission definitely disagrees with nature, the doing of which is commanded.

(quoted in Cortest, 99). This view found in Suarez and criticized by Grisez is not only a view held by Suarez, this is the view held by the Stoics, by St. Thomas, and, most importantly, by the common teaching of the Church.

How Grisez can reach his conclusion when the very Summa Grisez purports to interpret states unequivocally that "good and being are really the same, and differ only according to reason . . . . it is clear that a thing is good so far as it is in being . . . ." Bonum et ens sunt idem secundum rem. Ia, q. 5 art. 1. Perhaps Grisez's professor should have made him write on the blackboard three hundred times when his student was studying his Thomism:

Another unfortunate omission is the failure to include the work of Alasdair MacIntyre, particularly his After Virtue, which, in a manner of the young subject pointed out in the story of the Emperor with No Clothes, that the Enlightenment Project has been an abysmal failure. Reason alone, abstracted from the existence, that is, reality, and, from a practical perspective, unmoored from the Faith, simply has not been effective in arriving at any consensus. There is only cacophony among modern ethicists and moralists who cannot even talk to each other any more.

Cortest finally concludes:

In the early twenty-first century, very few thinkers still embrace traditional natural law. Nevertheless, as we have shown, this doctrine has survived in an intellectual world that has rejected almost any notion of ontological reality and understands the human person and morality in purely biological and cultural terms. For most modern thinkers, traditional natural law is like a face that no one can bear to look upon anymore. Indeed, it is a face disfigured by time and neglect.

Cortest, 101.

Sudarium (Veil) of St. Veronica, Depiction by Francisco d' Zurbarán

Indeed, in this, the traditional and classical notion of natural law is not unlike the Lord. Both the Lord and his Law are despised and rejected by men (Isaiah 53:3). But, though the libertine, the tyrant, the materialist, the anarchist, and the fat capitalist blind with pleonexia, are not among those who love the Lord and his Law, there are also those who, perhaps now fewer in number than before, love them both. They will treasure the face of the Lord and his Law, however disfigured by time and neglect, like Veronica did her sudarium.

"It is manifest that, as it has been said, there are only three laws and no more; that is the Law of the Jews, the Christians, and the Saracens. The Law of the Jews is good in as much as it is the foundation of the Law of the Christians; but the Law of the Christians is the best inasmuch as it is complete; but I say that the Law of the Saracens is false and erroneous . . . "

O Mary,Mother of Mercy,watch over all people,that the Cross of Christmay not be emptied of its power,that man may not strayfrom the path of the goodor become blind to sin,but may put his hope ever more fully in Godwho is rich in mercy.May he carry out the good works preparedby God beforehandand so live completelyfor the praise of his glory.